Palomino v. The Eagle Band of California USA
- Proceeding
- district
- Area
- civil
- Panel
- Larry Alan Burns (author)
Analysis
Plaintiff Fernando Palomino filed a pro se copyright infringement complaint against The Eagles Band of California USA and moved to proceed in forma pauperis (IFP) and for appointment of counsel. The court granted the IFP motion, denied the motion to appoint counsel without prejudice, and dismissed the complaint without prejudice for failure to state a claim due to the absence of evidence establishing ownership and substantial similarity.
| What the court decided | The model |
|---|---|
Motion to Proceed In Forma Pauperis (IFP) granted“The Court finds Palomino is unable to pay the filing fee, so his motion to proceed IFP is GRANTED.” | agree with court The court applied the statutory standard for IFP status under 28 U.S.C. § 1915, finding that the plaintiff's stated income and assets demonstrated an inability to pay the filing fee. This is a standard procedural determination based on the financial affidavit provided. |
Motion to Appoint Counsel denied without prejudice“For now, Palomino’s Motion to Appoint counsel is DENIED WITHOUT PREJUDICE.” | agree with court The court denied the request for appointed counsel because the current complaint fails to state a claim. The denial is without prejudice, allowing the plaintiff to re-request counsel if an amended complaint states a plausible claim. This is consistent with the principle that courts generally do not appoint counsel in civil cases unless the case is complex and the plaintiff is indigent, and here the case is not yet viable. |
Complaint dismissed without prejudice“As such, Palomino’s complaint is DISMISSED WITHOUT PREJUDICE.” | agree with court The court applied the screening requirements of 28 U.S.C. § 1915(e)(2)(B) and the plausibility standard from *Lopez v. Smith*. It found that the plaintiff failed to plausibly allege the two elements of copyright infringement: ownership and copying/substantial similarity. The dismissal is without prejudice to allow the plaintiff to amend the complaint by providing the missing recordings or lyrics. This is a correct application of the law for a pro se IFP plaintiff who has not provided the necessary factual basis for the claim. |
The order itself: sound — The order correctly identifies the statutory basis for screening IFP complaints and applies the appropriate legal standard for copyright infringement. It accurately notes that the plaintiff failed to provide the necessary evidence (recordings/lyrics) to plausibly allege ownership and substantial similarity. The dismissal without prejudice is appropriate to allow the plaintiff to cure the deficiencies. The court also appropriately notes the statute of limitations issue but leaves it for another day, which is procedurally sound given the current state of the pleadings.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 FERNANDO “HORSEPAINTER” CASE NO. 19cv2500-LAB (KSC) 11 PALOMINO, 12 Plaintiff, ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [Dkt. 13 vs. 3];
14 THE EAGLES BAND OF CALIFORNIA, ORDER DENYING MOTION TO 15 USA, APPOINT COUNSEL [Dkt. 2]; Defendant. 16 ORDER DISMISSING PLAINTIFF’S COMPLAINT WITHOUT PREJUDICE. 17 18 19 20 On December 31, 2019, Plaintiff Fernando Palomino brought this suit against “the 21 Eagles Band of California USA” for copyright infringement. Pending before the Court is his 22 petition to proceed in forma pauperis (“IFP”). 23 Palomino’s IFP application states that his average monthly income over the previous 24 year was approximately $454. He is unemployed and has just $100 in his Chase checking 25 account. The Court finds Palomino is unable to pay the filing fee, so his motion to proceed 26 IFP is GRANTED. Dkt. 3. 27 When a plaintiff is permitted to proceed IFP, the Court is required to screen the 28 complaint, and dismiss it to the extent it is frivolous or malicious, fails to state a claim, or 1 || seeks monetary relief from an immune defendant. See 28 U.S.C. § 1915(e)(2)(B); Lopez v. 2 || Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc). 3 Liberally construed, Palomino’s complaint alleges that he is the original performer of 4 || a song entitled “How Many More Miles to Your Heart.” Sometime in 1989, he provided a 5 || recording of this song to the rock band the Eagles (or to someone affiliated with the band). 6 || The Eagles then proceeded to infringe Palomino’s work by using it as a basis for two of their 7 || hit songs, “Matters of the Heart” and “Love Will Keep Us Alive.” 8 At this stage, Palomino has not stated a viable claim for copyright infringement. To 9 || prevail on a copyright infringement claim, a plaintiff must show that (1) he or she owns the 10 || copyright in the infringed work, and (2) the defendant copied protected elements of the 11 || copyrighted work. Williams v. Gaye, 895 F.3d 1106, 1119 (9th Cir. 2018). Chiefly because 12 || he has not provided the Court with any of the relevant recordings, Plaintiff has not plausibly 13 || demonstrated either of these elements. Without a copy of (or at least lyrics to) Palomino’s 14 || original song and the allegedly infringing Eagles songs, the Court is unable to determine 15 || whether it is plausible that the works are “substantially similar.”’ /d. As such, Palomino’s 16 || complaint is DISMISSED WITHOUT PREJUDICE. If he believes he can fix these 17 || deficiencies, perhaps by lodging with the Court the various recordings he references, he 18 || may file an amended complaint no later than March 3, 2020. For now, Palomino’s Motion 19 || to Appoint counsel is DENIED WITHOUT PREJUDICE. The Court will revisit that 20 || determination if his amended complaint states a plausible claim for copyright infringement. 21 IT IS SO ORDERED. 22 || Dated: January 2, 2020 (aud A (Buywy 23 HONORABLE LARRY ALAN BURNS oA Chief United States District Judge 25 26 27 || 1 The Court leaves the statute of limitations issues presented by this case for another day. Although copyright infringement uses a “separate accrual” rule—meaning that the statute of 28 || limitations runs separately from each violation—it is not clear from Palomino’s pleading when the infringing conduct occurred most recently.